On June 2nd, Paul’s fight for justice was dealt an unfortunate setback as the Appellate Court denied Paul’s appeal for a new trial. We are saddened and disappointed that the appellate court essentially washed their hands of their ability to come to a reasonable and just decision that would ensure Paul Cortez  his fair day in court.

People often tend to misunderstand what an appeal actually is. An appeal is not a retrial, nor is an appeal an opportunity to introduce new evidence. An appeal is strictly an attempt to contest the legal/technical points of the original trial. The appellate court is NOT allowed to re-examine the evidence from the original case. No new evidence, information, testimony, or expert opinions may be presented during an appeal. The appellate court examines the legal procedures of the original trial to see in their opinion if there were any irregularities during the proceedings. 

So in Paul’s case, all of the DNA and forensic evidence/expert opinion that was inexplicably omitted from his original trial that would prove his innocence could not be considered during the appeal. The appellate court was not permitted to explore why Paul’s original attorneys chose to not use available resources to test all of this DNA and forensic evidence left at the crime scene. The key evidence to prove Paul’s innocence was not considered again on appeal. This legal conundrum allowed the judges to once again confirm the original trial verdict as Paul’s new attorneys were only able to argue that errors of law by his trial attorneys were made at trial that resulted in an unfair trial for Paul. Should Paul have won the appeal, the remedy would have been a new trial where new attorneys re-try the case and re-present all the evidence in front of a new jury.

In Paul’s appeal, the most offensive issue on appeal was that Paul’s original trial attorney represented him despite a major conflict of interest. At the time of Paul’s trial, his own defense attorney was under indictment for a serious crime by the same prosecutor who was currently prosecuting Paul. More specifically, Paul’s trial attorney was charged with smuggling drugs into a prison for one of her other clients. This crime could have easily sent her to jail and caused her to lose her license to practice law. It is not a far stretch to assume that she did not zealously advocate for Paul against this prosecutor because she was hoping for some kind of leniency in her own drug smuggling case if the prosecutor got a conviction in Paul’s high profile case..  

In order to win the appeal on the conflict of interest issue, Paul must show on appeal that the conflict of interest compromised the representation he received from his attorneys. On appeal, Paul’s new appellate attorneys argued that Paul’s legal representation was blatantly compromised by his conflicted trial attorney who:: (I) did not consult one forensic expert, (ii) did not hire an investigator (unheard of in a capital murder crime), (iii) did not have an expert provide testimony on the timing of the fingerprint left at the crime scene prior to the time of the murder; (iv) did not test the DNA under the victim’s fingernails; (v) did not test the blond hairs intertwined in the victim’s fingers (Paul has dark hair) ; and (vi) made many other inexplicable omissions at trial that prevented the jury from considering all of the evidence – evidence that would clearly prove Paul’s innocence.

In denying Paul’s appeal, the appellate judges ruled that they could not be certain from the trial transcripts that the potential conflict of interest compromised the representation Paul received from his original trial attorney. The appellate judges stated that based on the limited information in the trial transcripts, there could have been a strategic reason that Paul’s trial attorney chose to not consult forensic/scientific experts or introduce this omitted evidence at trial. It is unimaginable what kind of strategic reason Paul’s original trial attorneys might have had for ignoring (and the prosecutor also ignoring) the only physical evidence in the entire case. The attorneys were either self- serving or grossly incompetent. We were disappointed the judges did not rule on the side of common sense.

Although the appellate decision is difficult to stomach given the blatant conflict of interest and/or incompetency, the positive news is that the appellate judges suggested that their ruling may have been more favorable if we took the next step of filing motions to now include in the trial record the previously omitted DNA and forensic opinions.

What’s next? Our next steps must be to follow the road map set forth by the appellate judges and take the costly path of filing motions that will allow us to actually include each of the previously omitted pieces of evidence. This next legal step is called a 440 motion. A 440 motion expands the original trial record to include new evidence and the forensic testimony that was not made part of the original trial. This subsequent step is certainly costly and labor intensive, which is why the average convicted innocent person spends an average of at least 17 years behind bars before justice is realized.

In addition to the 440 motion, Paul filed an application to the highest court in the State of New York to appeal the decision made on June 2nd. This is again an additional expense but a necessary step in the legal process. It is so sad that in our legal system, the path to justice is so costly and time consuming. Without money and good lawyers, a wrongfully convicted person does not stand a chance and even with millions of dollars and an amazing legal team, the technical nature of the law is almost entirely unyielding. It is designed to uphold lopsided odds for decision reversals. 

Paul Cortez is an innocent person and the person responsible for this heinous act is walking free. This group is dedicated to breaking down the daunting legal barriers one by one and allowing the real truth to be heard. We believe that with hard work and perseverance, Paul will one day soon be free. We are always for volunteers to join our team and help Paul have his freedom again.

Many of our wonderful supporters have been writing and asking what they can do to help. We are always seeking volunteers to help support Paul’s cause. If you are interested in being part of our team, please contact us at paulcortezdefensefund@hotmail.com.

In order to follow through with our 440 motion, we need to raise money to hire DNA experts and investigators. Any and all donations will be greatly appreciated! 

On Tuesday, November 30^th, Paul’s attorneys presented oral arguments in support of Paul’s case of an unfair trial before a panel of five appellate judges for the state of New York. Over the next two to five months, this panel of judges will deliberate on Paul’s case and issue a judgment. As we await this legal decision, please have Paul in your thoughts and prayers, and hopefully justice will be served and Paul will finally gain the fair trial that he was so wrongfully denied back in 2007.